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APRIL 2021 Blues Vol 37 No. 4

  • Text
  • Evans
  • Barron
  • Us
  • Newspaper
  • News
  • Magazine
  • Walker
  • Aftermath
  • Warstory
  • Shooting
  • Chief
  • Finner
  • Acevedo
• Meet the New HPD Chief of Police - Troy Finner • Trooper Chad Walker - Laid to Rest • Art Acevedo - Now Captain of the Love Boat • Inside a Mass Shooting • My Grandfather takes down a cop killer in the 60's • Over 60 Job Listings for LEOs in Texas

ojas [19] in which the

ojas [19] in which the Fifth Circuit dismissed a lawsuit against Texas correctional officers for allegedly subjecting inmate Taylor to shockingly unsanitary conditions in his cell. The Fifth Circuit ruled that the conduct of the officers violated the Eighth Amendment but determined that the law on point was not clearly established, thus relieving them of liability. The second case is McCoy v. Alamu, another Eighth Amendment case, that was filed by an inmate against a Texas correctional officer. [20] In this case, a correctional officer allegedly used pepper spray upon the plaintiff for no reason. The Fifth Circuit ruled in favor of the correctional officer on qualified immunity grounds because the plaintiff could produce no prior case which would place the officer on notice that he was violating clearly established law. In remanding the Taylor case, the Court issued a short “Per Curiam” Opinion [21] in which it observed that the Fifth Circuit was mistaken in granting qualified immunity to the defendant correctional officers. The Court explained that qualified immunity shields an officer who “reasonably misapprehends the law.” However, the Court stated, in this situation, “no reasonable correctional officer could have concluded that … it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions.” With these words, the Court is signaling its willingness to modify the qualified immunity doctrine to eliminate the need for victims to produce actual case law directly on point or sufficiently close in order to establish a violation of clearly established law. In other words, some misconduct is so egregious and so obviously wrong that it violates clearly established law even in the absence of the existence of prior case law directly on point or close to the instant issue. The “Qualified Immunity Reform” portion of U.S. House of Representatives Bill, H. R. 1280, Section 102, covers state and local law enforcement officers who are involved in “the prevention, detection, or investigation of any violation of criminal law.” [22] The proposed law does not appear to cover state correctional officers who guard prisoners convicted under state law. This may account for the Supreme court’s willingness to consider modifying qualified immunity in the state correctional realm while holding back on state and local law enforcement officers until Congress votes on H.R. 1280. CONCLUSION After the death of George Floyd, the judicially created “qualified immunity” doctrine has been under assault and fierce criticism from many different directions, including media and various citizen groups. The pressure to change or abolish the doctrine has resulted in the passage of H.R. 1280 by the U.S. House of Representatives. If H.R. 1280 becomes law, the defense of qualified immunity for law enforcement officers will be abolished. If the bill fails to pass, the Supreme Court, which has recently declined to review numerous law enforcement-related qualified immunity cases, is likely to accept a law enforcement qualified immunity case for review. Such a review will likely focus on the fairness of judicial dismissals of alleged police misconduct cases because plaintiffs were unable to overcome the clearly established law requirement of the qualified immunity doctrine. The Supreme Court has very recently signaled its sensitivity to lower court dismissals of troublesome correctional officer misconduct cases because the plaintiffs could not locate a specific case that clearly established wrongdoing by correctional officials. The Court has indicated in a Per Curiam Opinion its willingness to consider modifying the qualified immunity doctrine by abandoning the strict requirement that a plaintiff produces a specific prior case that declared the conduct of the current defendant clearly unconstitutional. Instead, in the absence of such a case, the Court may declare that some police misconduct is so obviously wrong that finding a particular prior case close to or directly on point is unnecessary. ABOUT THE AUTHOR John Michael Callahan served in law enforcement for 44 years. His career began as a special agent with NCIS. He became an FBI agent and served in the FBI for 30 years, retiring in the position of supervisory special agent/ chief division counsel. He taught criminal law/procedure at the FBI Academy. After the FBI, he served as a Massachusetts Deputy Inspector General and is currently a deputy sheriff for Plymouth County, Massachusetts. He is the author of two published books on deadly force and an upcoming book on supervisory and municipal liability in law enforcement. 12 The BLUES POLICE MAGAZINE The BLUES POLICE MAGAZINE 13

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